Wonson and Comcare (Compensation) - [2019] AATA 2779

Wonson and Comcare (Compensation) [2019] AATA 2779 (20 August 2019)
Division:GENERAL DIVISION
File Number: 2016/4658
Re:Sue Wonson
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:20 August 2019
Place:Sydney

The reviewable decision made on 20 June 2016, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Wonson in respect of the claimed injury, is affirmed.
.............................[sgd]...........................................
Deputy President J W Constance
CATCHWORDS
WORKERS COMPENSATION – application for review of decision to affirm earlier determination denying liability to pay compensation to Applicant in respect of claimed injury – where Applicant suffered a “disease” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B – adjustment disorder with depressed and anxious mood – whether Applicant for purposes connected with her employment made a wilful or false representation(s) that she did not suffer, or had not previously suffered, the disease – whether Applicant suffered the disease “as a result of reasonable administrative action taken in a reasonable manner in respect of [the Applicant’s] employment” – refusal to reclassify leave – Applicant would not have suffered disease but for reasonable administrative action – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Griffiths v Australian Postal Corporation (2018) 158 ALD 298
Griffiths and Australian Postal Corporation [2017] AATA 1025
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)
REASONS FOR DECISION
Deputy President J W Constance
20 August 2019
A: INTRODUCTION

Ms Wonson commenced employment by the Department of Human Services as a Case Officer in the Child Support Agency in 2004.
In October 2015, Ms Wonson lodged a claim for compensation[1] in respect of an injury described as “psychological and physical injury”, which she claimed to have suffered as a result of workplace “bullying & harassment from 2010 to current”.[2] Her claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[1] Exhibit R1 at 353.
[2] Exhibit R1 at 355.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Wonson requested this be reconsidered. On 20 June 2016, Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In September 2016, Ms Wonson applied to the Tribunal to review the reviewable decision.[4]
[3] Exhibit R1 at 533.
[4] Exhibit R1 at 1.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Ms Wonson.
Ms Wonson is 47 years old.
On completion of her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wonson and Comcare (Compensation)

Details

AGLC: Wonson and Comcare (Compensation) [2019] AATA 2779
Case: [2019] AATA 2779
Decision Date: 20 August 2019

CaseChat Overview and Summary

This case concerned an application for review of a decision by Comcare to affirm an earlier determination that denied the applicant, Ms Wonson, compensation for a claimed injury. The applicant had lodged a claim for compensation on 15 October 2015, alleging she suffered an adjustment disorder with depressed and anxious mood as a result of her employment. Comcare's initial decision had denied liability, and the Administrative Appeals Tribunal was required to review this decision.

The legal issues before the Tribunal were whether Ms Wonson suffered a "disease" within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, whether that disease was a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Specifically, the Tribunal had to consider whether Ms Wonson made wilful or false representations regarding her past medical history when seeking employment, and whether the refusal to reclassify her sick leave as flex or recreation leave constituted reasonable administrative action.

The Tribunal found that Ms Wonson was suffering from an adjustment disorder with depressed and anxious mood by 11 November 2015. However, it also found that this condition was a result of reasonable administrative action taken in a reasonable manner. This conclusion was based on the evidence that Ms Wonson had made a wilful misrepresentation on her pre-employment medical assessment form by failing to disclose a past nervous or mental condition. Furthermore, the Tribunal determined that the decision not to reclassify her sick leave was reasonable administrative action, as it was taken in accordance with the employer's policies and procedures, and Ms Wonson's request did not meet the criteria for such reclassification.

Consequently, the Tribunal affirmed the reviewable decision, meaning Comcare's refusal to pay compensation to Ms Wonson was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow, the reviewable decision will be affirmed.B: BACKGROUND Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Ms Wonson. Ms Wonson is 47 years old. On completion of her secondary education Ms Wonson worked in various positions, including as a shop assistant and in administrative roles. She completed courses in keyboarding, office procedures and receptionist duties. There are two children of Ms Wonson’s first marriage. The marriage ended in divorce in 1998. In 2000, Ms Wonson remarried. [Paragraph deleted.] In 2003, Ms Wonson undertook further part-time study and obtained a Certificate IV in Community Services (Welfare). From January 2003 until October 2004 she was employed as a case worker. On 18 October 2004, Ms Wonson was employed as a case officer in the Child Support Agency. In December of that year she passed the entry level programme for the Child Support Agency and was assigned to a debt management team. She enjoyed her work. Ms Wonson worked in several teams. From 2010 onwards she experienced difficulties in her workplace to which I shall refer later in these reasons. As a result she lodged the claim for compensation on 15 October 2015.C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) Subsection 14(1) of the Act provides:(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is defined in subsection 5A(1) to mean:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Subsection 5A(2) provides:(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:(a)a reasonable appraisal of the employee’s performance;(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;(c)a reasonable suspension action in respect of the employee’s employment;(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

Evidence

Evidence Before The Court

In mid-July 2012, Ms Wonson was absent from work for two days. Her general practitioner certified that her absence was “due to work related stress”.[10] During the following three years, several incidents took place at work which Ms Wonson believes caused her to become depressed.Evidence of Medical Practitioners[10] Exhibit A1 at [70].Dr Rao, General Practitioner In a certificate dated 11 November 2015, Ms Wonson’s general practitioner, Dr Rao, diagnosed her as suffering “severe anxiety/Depression/stress”.[11] On 7 December 2015, Dr Rao reported that her diagnosis of Ms Wonson’s condition was “reactive depression and anxiety”. Dr Rao described the depression as “moderate to severe”, and both the stress and anxiety as “severe”.[12][11] Exhibit R1 at 361.[12] Exhibit R1 at 461.Dr Chow, Consultant Psychiatrist Dr Chow assessed Ms Wonson in December 2015. He provided reports dated 5 January 2016[13] and 9 August 2017[14] and gave evidence at the hearing.[13] Exhibit R1 at 500.[14] Exhibit R3. Dr Chow reported on 9 August 2017 that, in his opinion, Ms Wonson suffered from a major depressive disorder being an aggravation of an underlying condition suffered in 2003, 2008 and 2011.Dr Smith, Consultant Psychiatrist Dr Smith examined Ms Wonson in May 2016 and May 2017. He provided reports dated 31 May 2016[15] and 19 May 2017[16] and gave evidence at the hearing. [15] Exhibit R1 at 536.[16] Exhibit A2. In the opinion of Dr Smith, in May 2017 Ms Wonson was suffering from an adjustment disorder with mixed depressed and anxious mood. In view of the length of time Ms Wonson had experienced the condition, he deemed her prognosis for recovery to be poor.[17][17] Exhibit A2 at 8.Dr McDonald, Consultant Psychiatrist Dr McDonald assessed Ms Wonson on 8 December 2015 and 2 August 2016, and reviewed additional documentation in August 2017. He provided reports dated 23 December 2015,[18] 11 August 2016,[19] and 8 August 2017.[20] Dr McDonald was unavailable to give evidence at the hearing.[18] Exhibit R1 at 488.[19] Exhibit R12.[20] Exhibit R11. In the opinion of Dr McDonald, in August 2017 Ms Wonson was suffering a chronic adjustment disorder with depressed and anxious mood.[21] [21] Exhibit R11 at 7.Ailment suffered by Ms Wonson no later than 11 November 2015 On the basis of this evidence, I am satisfied that Ms Wonson was suffering from an ailment by no later than 11 November 2015, being an adjustment disorder with depressed and anxious mood. She was still suffering from this ailment when she was reviewed by Dr Smith in May 2017. On the basis of the evidence of Ms Wonson, I am satisfied that she continues to suffer from the ailment. This is supported by the opinion of Dr Smith that in 2017 her prospects of recovery were poor.F: ISSUE 2: WAS THE AILMENT “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MS WONSON’S EMPLOYMENT BY THE DEPARTMENT OF HUMAN SERVICES, AND THEREFORE A “DISEASE” WITHIN THE MEANING OF THE ACT?Evidence of Ms Wonson

Decision

Reasons for decision

As I have already decided that Ms Wonson suffered an adjustment disorder no later than 11 November 2015, each of the above actions were taken prior to that date and thus need to be considered.H3: The decision made on 17 September 2015 not to reclassify Ms Wonson’s sick leave as flex or recreation leave In considering whether action meets the requirements of the exclusionary provisions in section 5A, it is relevant to take into account the circumstances surrounding the action relied on.Ms Wonson’s evidence In her statement of 16 April 2017, Ms Wonson described the events leading up to, and including, the meeting of 30 September 2015:On 17 September 2015 I had taken sick leave. Upon returning to work on 18 September 2015 found that my pay had been docked by 2 or 3 hours. I asked Acting Team Leader Elissa Fourtounas why my pay was docked. Elissa said it was because I had no sick leave available. I asked if it could be put as flex taken rec leave or out of my long service leave. Elissa said she would need to speak with Jodie Bonney before she makes a decision.On 18 September 2015 an email was sent to me from Elissa stating she had made a decision to keep my leave the same which meant my pay would be docked.On 18 September 2015 I sent an email to my Union Representative Leighanne Hunt asking if a Team Leader can make a decision to approve flex leave when sick leave is exhausted.On 19 September 2015 I received an email from Leighanne saying the agreement states it may be approved by a Team Leader because this is something that is their policies for people with long term illnesses.On 28 September 2015 I sent an email to both my Acting Team Leaders Elissa and Lisa Dodd stating what the agreement states it may be approved by a Team Leader because this is something that is their policies for people with long term illnesses.On 28 September 2015 Lisa responded with I need to escalate my concern to Mark Cartledge.On 29 September 2015 I responded to Lisa of my concerns about escalating my issues to Mark Cartledge due to a previous bullying complaint lodged against Mark. I advised Lisa that I would escalate the issue to Brenton Halliday has I don’t have the strength to keep fighting. In the email I said to Lisa that my depression has now escalated and I am struggling to come to work due to the lack of support with my ongoing illness and no understanding.I said I feel even if I am ill I would be forced to come to work as I have a family to support. I specifically said in the email coming to work till I hope no further breakdown happens at work as I won’t be able to come back and it would lead to compensation which I am trying my hardest to avoid.On 29 September 2015 Lisa responded by offering EAP and taking me off phone shift. Lisa said herself, Elissa and Jodie are more than happy to meet with me to discuss further. At the end of the email I was again left out where Lisa said the team celebrated both mine and Kate’s birthday. I felt again left out because no one told me a morning tea was being provided for my birthday they went ahead and celebrated without me there.On 29 September 2015 I forwarded an email to both Elissa & Lisa informing them I was on the phone to EAP and I also spoke with Brenton and he said he would arrange a meeting between me and Jodie.On 29 September 2015 Jodie Bonney sent me an email and she said she would arrange a meeting with me tomorrow and I could bring a support person. Jodie also asked how I was going.On 30 September 2015 I went into the meeting with my support person Leighanne there was Lisa, Elissa and Jodie. Jodie said for Elissa to take notes of the meeting and when done I will get a copy emailed to me. I started by saying in the agreement it says anyone with a proven ongoing illness can have their sick leave when exhausted exchanged as flex or recreation leave. I asked Jodie I have proven documentation from my specialist I have an ongoing illness so why as per the agreement hasn’t my sick leave been approved as flex or recreation leave. I said I have flex hours available and recreation leave available and long service leave available. Jodie said Elissa made the decision not to approve my leave. I asked Elissa why she didn’t approve my leave exchange as I fall into the conditions in the agreement. Jodie interrupted and said to Elissa, don’t answer that. I said to Elissa you spoke to Jodie before making the decision to not approve my leave type was the decision yours or Jodie’s. Jodie interrupted again and said to Elissa don’t answer that, then Jodie said it was all Elissa’s decision not to approve my leave exchange. I said to Jodie if you’re not going to let anyone answer my question why are we in this meeting. I said to Jodie as a Case Officer we are told to take accountability in our decisions at work and when a decision is made we have to explain how we came to that answer, I said you can’t tell Elissa not to answer, Jodie didn’t respond. I asked Lisa as my Team Leader which you prove my leave exchange request and if not why not. Jodie interrupted and said to Lisa don’t answer that.By now my nerves in my body were extreme I started to shake inside as I was getting bullied again by Jodie not letting my Team Leaders respond to my question and knowing that Jodie knew of my bullying when in Sharon’s team. I couldn’t believe it was happening again and I broke. I started to cry and looked at Lisa and Elissa and said I have an illness I did not ask for, I work to pay bills and help with supporting my family I am asking for support from both of you as my Team Leaders for support and approve my leave request. I said to Elissa and Lisa to see things from my point of view and I have fibromyalgia (my voice was shaking) and said I am begging you as docking my pay now and in the future will put me in hardship and deeper depression and I’ll end up coming to work sick and am scared I will break down at work. Elissa and Lisa looked at me then looked at Jodie. Jodie said to Lisa and Elissa don’t answer. I stood up crying and said you are leaving me no option but to claim compensation I feel like I’m going to break down now completely. No-one said anything. I said to Elissa and Lisa I have a phone shift now but I’m so upset I cannot answer phones, I asked if I could go home. Jodie said if I go home I will not get paid as I would be leaving under sick leave as it was my words I was stressed. Lisa said I have to go on the phones. I said to Lisa I can’t go home as I won’t get paid and go on phones but when a customer can hear my voice upset, crying and shaking it won’t be my fault if they complain. Lisa said are you saying you’re not fit to answer calls. I said yes it’s obvious I’m crying and breaking down in front of you. Lisa said I can stay off the phones but can’t go home and to sit at my desk for the remaining hours of the day before I go home. I said to Lisa everyone will see me crying Lisa said to stay off phones but still go back to my desk.I said to Jodie you know the bullying I received when I Sharon’s team I can’t believe what’s happening now. You have forced me to lodge a compensation claim which I will do today after work. I’ll be going straight to my doctor. Jodie responded, “Don’t be like that Sue”.Leighanne then said to Jodie, Lisa and Elissa it is clear Sue is extremely distressed I think Sue should leave the room, Jodie said yes I could, I left the room.Before going to my desk I went to an empty room. I was shaking and crying I phoned my husband and told him what happened. David supported me and said enough is enough he couldn’t stand me getting bullied then coming home upset, crying and withdrawing from the family. He agreed I go to my doctor on the way home and lodge a compensation claim. I tried to settle myself as much as possible and went back to my desk, I just couldn’t stop crying and this was in front of my team I felt belittled.After work I went straight my doctor and lodged a compensation claim.[52](Errors in original.)[52] Exhibit A1 at [163]-[181].

Ratio Decidendi

Legal Principle Established

Dr Chow reported that Ms Wonson provided a psychiatric history of “postnatal depression when she was 30, received counselling and six months of medication, has been in remission since”.[43]Request made 23 May 2016 for reconsideration of Comcare’s denial of liability[44][43] Exhibit R1 at 503.[44] Exhibit R1 at 527. In their request that Comcare reconsider the initial determination dated 7 January 2016, the solicitors for Ms Wonson relevantly stated:The client completed the claim form and the pre employment forms to the best of her ability. She was of the view that she had suffered from post natal depression solely related to the birth of her son in 2003 and that was not what the question was asking her hence why she selected no.If the client had intentionally mislead she would not have disclosed it to your Dr Chow or Dr McDonald.The claimant had disclosed to Dr Chow that she had suffered post natal depression and has always been of the belief that was not a similar symptom, injury or illness as set out in question 33 of the claim form. She also was of the view that she also did not fall into the category on the pre employment medical declaration as in 2004 she was of good mental health.G2: Ms Wonson’s evidence The following exchange took place between Ms Wonson and Counsel for Comcare in relation to the answers she gave on the pre-employment medical assessment form:You told us that you knew you had to tell the truth? --- Yes.You told us that other people you knew would rely upon it? --- Yes.You told us that you knew it was with respect to you having your employment confirmed? --- Yes.You told us that you understood each of the instructions, both at the front page and also on that page? --- Yes.You told us all of that? --- Yes.So why didn’t you tell the truth when you filled out that particular number 7? --- I was going off my emotions and I was just very happy. And you just think forward. I was just thinking forward. It was a new me. It wasn’t the past me, it was a new me. And I was just thinking forward.See, you know, sitting here with the tribunal now - - -? --- Yes.- - - reading each of those instructions that we’ve looked at? --- Yes.Let me ask you this? --- Yes.In September 2004? --- M’mm.Had you ever had a nervous or mental condition? Had you? --- Yes.And so if we accept that you read and comprehended and understood this, it must follow that you knew that you were answering that truthfully? --- No.Why didn’t you answer it truthfully? --- I told you.Well - - -? --- When you go through there, I was just emotionally on a high and I was thinking positive and I was thinking of the future.[45][45] Transcript, 4 April 2018, at 164-165. Further, Ms Wonson said that she did not trust the doctors who assessed her on behalf of her employer and that she made a conscious decision not to tell them her full medical history. In her opinion her personal issues were not a matter of inquiry. G3: Discussion In Griffiths v Australian Postal Corporation,[46] Flick J held that the following expression of the question posed by subsection 7(7) was correct:The exclusion operates where the employee misrepresents that he or she did not suffer from that disease, namely the disease the subject of the present claim. If the claim is for a disease which is not the same as the disease previously suffered from, the exclusion does not apply.[47](Emphasis in original.)[46] (2018) 158 ALD 298.[47] Ibid at [25], citing Griffiths and Australian Postal Corporation [2017] AATA 1025 at [23].